State of Louisiana v. Herbert Davenport, Jr.

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

06-0363

STATE OF LOUISIANA

VERSUS

HERBERT DAVENPORT, JR.

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APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF VERMILION, NO. 2003 T 1768, HONORABLE DURWOOD CONQUE, DISTRICT JUDGE

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JIMMIE C. PETERS JUDGE

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Court composed of Chief Judge Ulysses Gene Thibodeaux and Judges Jimmie C. Peters and J. David Painter.

CONVICTION AFFIRMED, SENTENCE VACATED, AND THE MATTER REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS.

Thibodeaux, Chief Judge, dissents and assigns written reasons.

Richard Putnam, III Assistant District Attorney Post Office Box 175 Abbeville, LA 70511-0175 (337) 898-0103 COUNSEL FOR APPELLEE: State of Louisiana

James Beal Louisiana Appellate Project Post Office Box 307 Jonesboro, LA 71251-0307 (318) 259-2391 COUNSEL FOR DEFENDANT/APPELLANT: Herbert Davenport, Jr. PETERS, J.

A jury convicted the defendant, Herbert Davenport, Jr., of hit and run driving,

a violation of La.R.S. 14:100. Thereafter, the trial court sentenced him to serve seven

and one-half years at hard labor. The defendant appeals both his conviction and

sentence, asserting two assignments of error. For the following reasons, we affirm

the defendant’s conviction, but vacate his sentence and remand the matter to the trial

court for further proceedings.

DISCUSSION OF THE RECORD

At approximately 2:00 a.m. on Saturday, September 27, 2003, the defendant

was driving a vehicle south on U.S. Highway 167 (U.S. 167) in or near Maurice,

Vermilion Parish, Louisiana. Ross Plowden accompanied the defendant and was

sitting in the front passenger seat. The two men had been together since early Friday

afternoon and were returning from a trip to Lafayette, Louisiana. As the two men

traveled the highway, the defendant accidentally struck and killed a pedestrian, Cliff

R. Gaspard.1 It is this accident that gave rise to the criminal charge now before us.

At the point where the defendant struck Gaspard, U.S. 167 is a four-lane

highway with the north and south travel lanes separated by a median. Visibility on

the early morning hours of September 27, 2003, was impaired by ground fog, and the

accident occurred when the defendant, who was proceeding south in the outside lane

of U.S. 167, swerved to the inside lane to avoid a collision with another vehicle

which had turned in front of him. When the defendant entered the inside lane, he

immediately encountered Gaspard walking in the middle of the lane. He swerved

back toward the outside lane to avoid hitting Gaspard, but, for some unexplained

1 The defendant and Plowden were the only two witnesses to the accident. The evidence with regard to the particulars of the accident was supplied at trial through the testimony of Plowden and pretrial statements of the defendant. reason, Gaspard turned in the direction of the swerving vehicle and was struck. The

defendant regained control of his vehicle and stopped on the side of U.S. 167, and he

and Plowden began a futile search for the victim.2 After failing to find the victim, the

two men abandoned the search and left the scene of the accident without reporting the

incident to any law enforcement authority.

At approximately 6:45 a.m. that same morning, Dallas E. Landry discovered

Gaspard’s body in the highway median approximately thirteen feet from the edge of

the highway and immediately reported his discovery to law enforcement officials.

That evening, after seeing a television report concerning the accident, the defendant

turned himself in to law enforcement authorities and subsequently gave an oral

statement concerning his involvement in the incident.

The State of Louisiana (state) charged the defendant by bill of information with

a violation of La.R.S. 14:100. After a two-day trial, which began on July 12, 2005,

a jury convicted the defendant of the charge. The trial court then ordered the

preparation of a presentence investigation report and set sentencing for November 9,

2005. On that date, the trial court sentenced the defendant to serve seven and one-

half years at hard labor. After the trial court rejected his December 6, 2005 motion

to reconsider his sentence, the defendant perfected this appeal, asserting two

assignments of error.

OPINION

In his first assignment of error, the defendant asserts that the evidence was not

sufficient to convict him of hit and run driving. In considering this assignment of

error, we first note that the law is well settled concerning the appellate court’s role

2 The testimony of Plowden conflicts with other evidence concerning the defendant’s role in the search for the victim, but that conflict is not dispositive of the issues before us.

2 in considering an insufficient evidence argument. The critical inquiry of the

reviewing court is whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983).

Louisiana Revised Statutes 14:100 defines the offense of hit and run driving

and provides in pertinent part as follows:

A. Hit and run driving is the intentional failure of the driver of a vehicle involved in or causing any accident, to stop such vehicle at the scene of the accident, to give his identity, and to render reasonable aid.

B. For the purpose of this Section:

(1) “To give his identity”, means that the driver of any vehicle involved in any accident shall give his name, address, and the license number of his vehicle, or shall report the accident to the police.

(2) “Serious bodily injury” means bodily injury which involves unconsciousness, extreme physical pain, or protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty, or a substantial risk of death.

....

(4) “Accident” means an incident or event resulting in damage to property or injury to person.

Thus, the fact that an individual is involved in an accident does not give rise to the

criminal charge. Rather, criminal culpability is based on the individual’s action or

inaction after the accident. After being involved in an accident, an individual must do

three things to avoid criminal liability: He must stop his vehicle at the scene of the

accident, give his identity, and render reasonable aid. If he intentionally fails to

perform these three actions, he may be convicted of the offense of hit and run driving.

State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7.

3 On appeal, the defendant asserts that these three elements are separate and

distinct and that the state established only one of the three, i.e., his failure to report

the accident to the police.3 We disagree. While the elements are listed separately,

they clearly overlap in their application.

The evidence establishes beyond a reasonable doubt that the defendant did stop

his vehicle at the scene of the accident after he struck the victim and that he initially

searched for the victim,4 but then left the scene. The evidence also establishes beyond

a reasonable doubt that the defendant failed to report the accident to the police, either

at the accident scene or after he left the scene,5 and that he provided no aid to the

victim other than the futile search effort.

We conclude, as apparently did the jury, that the temporary stop was not

sufficient to satisfy the obligation arising under La.R.S. 14:100. That statute sets no

time limit for the required stop, and merely stopping at the scene without fulfilling

the other two obligations, i.e., providing identity and rendering reasonable aid, is no

different than not stopping at all. We also find no merit in the argument that the

search effort was sufficient to satisfy the reasonable aid element. By not reporting the

accident, the defendant effectively prevented the victim from receiving reasonable

aid.

3 In this case, because the victim was not initially located, La.R.S. 14:100(B)(1) required that the defendant report the accident to the police. 4 The defendant’s prior statement to the investigating officers was to the effect that he and Plowden searched the highway for approximately thirty minutes on both sides of the road, but did not discover the victim’s body. Plowden testified that the search lasted about twenty minutes, and, while his testimony was ambiguous concerning the defendant’s involvement in the search, he acknowledged on cross-examination that the defendant participated in the search. 5 Plowden testified that he and the defendant attempted to flag down a passing police car while at the scene of the accident.

4 In viewing the evidence in the light most favorable to the state, we conclude

that any rational trier of fact could have found that the state established the essential

elements of the offense beyond a reasonable doubt. Thus, we find no merit in the

defendant’s first assignment of error.

In his other assignment of error, the defendant asserts that the sentence

imposed by the trial court is excessive. The incarceration sentence for a defendant

convicted of hit and run driving is zero to ten years with or without hard labor.

La.R.S. 14:100(C)(b)(2). Thus, the defendant’s seven and one-half year hard labor

sentence is within the statutory sentencing range. However, we do not reach the

excessiveness issue because we must vacate the sentence because the trial court based

the sentence in part on improper considerations.

At the sentencing proceedings, the trial court gave extensive oral reasons for

the sentence imposed. As mitigating factors, the trial court noted that the defendant

is a first felony offender with no prior criminal history and that he did surrender

himself to law enforcement after he saw the television broadcast. Past that point, the

trial court found no other factor mitigating in favor of the defendant. The trial court

also noted the impact the accident had on the victim’s family and acknowledged that

the family requested imposition of the maximum sentence. To that extent, we find

no error in the trial court’s conclusions.

The difficulty arises in the trial court’s expressed disbelief in the state’s

evidence with regard to the defendant and Plowden stopping and searching at the

scene. Rather than accepting the state’s uncontradicted version of the surrounding

circumstances, the trial court concluded that the two men did not stop and search for

the victim, because, if they had, they would have found him. Thus, in sentencing the

5 defendant, the trial court improperly penalized the defendant for inaction not

supported by the evidentiary record.

Additionally, the trial court also stated that it based its sentence partly on what

it concluded was the defendant’s obvious lack of remorse. This conclusion was

apparently based on comments made by the defendant in the presentence

investigation report, the argument of his counsel at the sentencing hearing, and the

fact that Plowden entered a guilty plea to accessory after the fact for his involvement

in the offense.

We make no comment concerning the contents of the presentence investigation

report. However, the statements of the defendant’s attorney relate to an attempt to

introduce evidence of the victim’s condition immediately prior to the accident as well

as his prior criminal history. These offerings were rejected as being irrelevant. The

trial court erred in concluding that the trial strategy of the defendant’s attorney

equated to a lack of remorse on the part of the defendant.

Additionally, regarding Plowden’s plea,6 the trial court stated that this act

“apparently [showed] some remorse and some acceptance rather than denial of his

guilt,” as opposed to the defendant’s decision to go to trial. One cannot necessarily

equate Plowden’s plea bargain as being an indication of remorse. Plowden’s situation

was different than that of the defendant. Importantly, while the defendant had a

spotless criminal record, Plowden’s was extensive.7 Thus, the incentive for entering

into a plea agreement with the state and testifying against the defendant was

6 As a result of a plea agreement, Plowden received five years at hard labor for his involvement in the offense. 7 Plowden’s criminal record included, among other charges, unauthorized entry of an inhabited dwelling, simple criminal damage to property, possession of crack cocaine, possession of drug paraphernalia, and hit and run of a police officer. He was on probation at the time of the accident and committed several offenses after that time.

6 significant, and the trial court erred in relying on Plowden’s plea agreement as a basis

for concluding that the defendant showed a lack of remorse. Essentially, the trial

court punished the defendant for maintaining his innocence and requiring the state to

prove his guilt. This was improper.

While the trial court acknowledged that the defendant was a candidate for

probation, the trial court nevertheless sentenced him to a hard labor sentence,

primarily based on its disbelief in the uncontradicted version of the surrounding

circumstances, its finding of lack of remorse on the part of the defendant, the fact that

Plowden had been sentenced to five years at hard labor, and the feelings of the

victim’s family. When the improper considerations are removed from the trial court’s

reasons for sentencing, we are left with only the recognized mitigating factors and the

comments from the victim’s family. Because the trial court was improperly

influenced in sentencing the defendant by its conclusions with regard to the evidence

presented as well as the remorse issue, we find it necessary to vacate the sentence and

remand the matter to the trial court to resentence the defendant without consideration

of those factors as they were originally presented.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s conviction, but vacate the

sentence and remand this matter to the trial court for further proceedings.

CONVICTION AFFIRMED, SENTENCE VACATED, AND THE MATTER REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS.

7 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

06-363

STATE OF LOUISIANA

VERSUS

HERBERT DAVENPORT, JR.

THIBODEAUX, Chief Judge, dissenting.

The majority misconstrues the clear language of La.R.S. 14:100. In

doing so, it imposes conditions on a defendant not contemplated by the statute. The

application of impermissible statutory construction improperly upholds the conviction

of this Defendant.

Louisiana Revised Statutes 14:100 is written in the conjunctive. It

requires: (1) stopping one’s vehicle at the scene; (2) giving one’s identity; and, (3)

rendering reasonable aid. The majority recognizes these three factors and further

recognizes that if one fails to perform these three actions, he may be convicted of the

offense of hit and run driving, citing State v. Williams, 03-3514 (La. 12/13/04), 893

So.2d 7. However, the majority reasons that these elements, although in the

conjunctive, are not separate and distinct. Rather, the three elements must be read

together such that a defendant must simultaneously do all three things. That is, when

one stops his vehicle pursuant to La.R.S. 14:100(A), he must simultaneously provide

his identity and render reasonable aid. The failure to do so, the majority reasons, is

tantamount to not stopping at all. I disagree. The rendering of reasonable aid presupposes the existence of someone

to whom aid should be provided. In this case, the testimony indisputably shows that

an attempt was made to find the victim and to presumably provide assistance. The

Defendant’s and his friend’s attempt to find the victim was unavailing.

Consequently, they left the scene. The Defendant then turned himself into law

enforcement upon hearing about this accident on a local television broadcast.

Williams emphasizes that it was “undisputed that defendant did not stop

at the scene of the accident.” Id. at 13. It is significant that the supreme court chose

to emphasize the word “at” in finding that element number one had been proven.

Here, there is no doubt the Defendant stopped at the scene of the accident and

attempted to render aid. The State failed in its burden, in my view, to establish that

the Defendant failed to stop at the scene of this accident.

It is axiomatic that criminal laws are to be strictly construed and with

lenity in favor of an accused and against the State. State v. Carr, 99-2209 (La.

5/26/00), 761 So.2d 1271. The majority, in upholding this conviction, fails to honor

this elementary principle of criminal law.

For the foregoing reasons, I respectfully dissent.